LE18-008

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BID SPECIFICATIONS

OPTION 2: CRUISE BOAT CONCESSION

Leonardo State Marina (“Marina”), Middletown Township, Monmouth County, New Jersey

1. SCOPE OF CONCESSION

A. Concessionaire shall be granted the exclusive right to operate a Cruise Boat Vessel

(“Vessel”) (hereinafter referred to as the “Concession Operation”), limited to the structure(s)

or area(s) provided by Department for concession purposes and specifically designated in

Exhibit A (hereinafter referred to as the “Concession Premises”).

B. Concessionaire shall be authorized, as part of the Concession Operation, to conduct cruises

that offer public and private boat charters, corporate outings, seasonal dinner cruises, happy

hour and entertainment cruises, and sightseeing tours.

C. Concessionaire shall be granted, as part of the Concession Operation, exclusive use of

assigned berth #176 and the adjacent parking area, specifically designated in Exhibit A. The

dimensions of assigned berth #176 are seventy-five feet (75) by twenty-three feet (23).

The maximum allowable vessel size shall be seventy-five feet (75) in length overall,

including the pulpit and swim platform, by twenty-two and a half feet (22.5) beam. The

Vessel shall be licensed for a minimum of eighty (80) passengers.

D. Concessionaire shall be authorized to charter the Vessel. The Vessel operated by

Concessionaire for the purposes of the Concession Agreement (“Agreement”) must be

approved in writing by Department and the United States Coast Guard, prior to docking the

Vessel at the Concession Premises. Concessionaire’s Vessel shall be manned, equipped, and

operated at all times in accordance with the United States Coast Guard Certificate of

Inspection. Concessionaire shall submit a copy of all United States Coast Guard approvals

and certificates to Department prior to commencement of use of the approved Vessel.

Concessionaire shall be required to maintain valid United States Coast Guard approvals at

all times during any Term of the Agreement. Failure on the part of Concessionaire to obtain

written Vessel approval and maintain United States Coast Guard approvals shall be a

material breach of the Agreement, subject to Suspension of Operations and/or Termination

in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

Concessionaire shall submit to Department, for approval, a written list of prices to charter

the Vessel. Concessionaire shall not commence any operations until Department approves

the proposed prices in writing. Failure on the part of Concessionaire to obtain written pre-

approval of the pricing to charter the Vessel shall be a material breach of the Agreement,

subject to Suspension of Operations and/or Termination in accordance with the terms and

conditions set forth in Paragraphs 9 and 10.

E. Concessionaire shall be authorized to sell prepared and prepackaged food and non-alcoholic

beverages on the Vessel. Concessionaire shall be solely responsible for obtaining all

necessary State licenses, inspections, and approvals before selling prepared and prepackaged

food and non-alcoholic beverages. The preparation and sale of prepared and prepackaged

food and non-alcoholic beverages without all applicable valid and current State licenses,

inspections, and approvals for the preparation and sale of prepared and prepackaged food

and non-alcoholic beverages shall be a material breach of the Agreement, subject to

Suspension of Operations and/or Termination in accordance with the terms and conditions

set forth in Paragraphs 9 and 10. Concessionaire shall comply with all rules and regulations

promulgated by the New Jersey State Department of Health and any other agency of

government with oversight over food preparation and service. Failure on the part of

Concessionaire to comply with all such rules and regulations shall be a material breach of

the Agreement, subject to Suspension of Operations and/or Termination in accordance with

the terms and conditions set forth in Paragraphs 9 and 10. Concessionaire shall submit to

Department a written list of items and prices for all prepared and prepackaged food and non-

alcoholic beverages for approval, prior to sale. Failure on the part of Concessionaire to

obtain written pre-approval of the types and prices of prepared and prepackaged food and

non-alcoholic beverages shall be a material breach of the Agreement, subject to Suspension

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of Operations and/or Termination in accordance with the terms and conditions set forth in

Paragraphs 9 and 10.

F. Concessionaire shall use the Concession Premises solely for the purposes set forth above

and is strictly prohibited from selling or permitting the sale or consumption of any alcoholic

beverages thereon. Concessionaire may request Department approval to sell and allow

consumption of alcoholic beverages on the Vessel while out of port. If approved in writing

by Department, Concessionaire may sell and allow consumption of alcoholic beverages on

the Vessel while out of port only after obtaining the necessary Alcoholic Beverage

Commission (ABC) permits and approvals. Concessionaire shall submit a written list of

items and prices for all alcoholic beverages for approval, in writing, by Department prior to

sale. The sale and consumption of alcoholic beverages without the required Department-

written approvals and ABC permits shall be a material breach of the Agreement, subject to

Suspension of Operations and/or Termination in accordance with the terms and conditions

set forth in Paragraphs 9 and 10.

G. Concessionaire shall not install, operate, or allow the installation or operation of vending

machines on the Concession Premises.

H. In the event that Concessionaire ceases to operate a Cruise Boat Vessel from the Marina for

a period of ten (10) consecutive calendar days without Department written approval, prior to

the expiration of the Agreement, Concessionaire relinquishes all rights to the Concession

Premises, including the assigned berth as delineated in Exhibit A.

I. Concessionaire’s status shall be that of a licensee. Concessionaire, whose term on the

Concession Premises shall be seasonal in nature, will not, in any way whatsoever, be

granted or conveyed any permanent easement, lease, fee, or other interest in the Concession

Premises.

2. ADVISORY UNSCHEDULED CLOSURES

All Bidders are hereby advised that the State Park Service facilities are subject to

unscheduled closures for reasons of health, public welfare, public safety, and government

closures. These closures may result from inclement weather, water quality, staffing, or

emergencies. Payment abatements will not be given for any reason. Bidders are cautioned

to review the information below related to closures before submitting a bid to provide

concession services.

Please see the below list of days which the Marina was closed over the past three (3)

seasons:

2014- No Closures

2015- No Closures

2016- No Closures

3. TERM

A. The “Initial Term” of the Agreement shall be from the “Effective Date of the

Agreement’s Initial Term,” as defined in Subparagraph 4(A), below, through December

31st, 2018. Upon expiration of the Initial Term, Concessionaire may request, in writing,

and Department may, in its sole discretion, for cause or no causeconvenience, grant a

Renewal of the Agreement, which shall start January 1st and shall end December 31st

(“Renewal Term”). Department may grant no more than six (6) subsequent Renewal

Terms following the Initial Term of the Agreement. Department reserves the right to

suspend Concessionaire’s operations and/or terminate the Agreement for any material

breach in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

Furthermore, failure on the part of Concessionaire to submit Monthly Reports or the

Annual Report, as described in Paragraphs 12 and 13, when due, constitutes a material

breach of the Agreement, subject to Suspension of Operations and/or Termination in

accordance with the terms and conditions set forth in Paragraphs 9 and 10.

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B. If Concessionaire wishes to renew the Agreement, it must submit a request, in writing, to

the address set forth in Subparagraph 5(C). Any such request must be received on or

before July 1st of the year prior to the year being sought for renewal. Should

Concessionaire fail to submit a written renewal request by July 1st, the Agreement shall

terminate at the conclusion of the Agreement’s current Term, in accordance with the

terms and conditions set forth in Paragraph 10. Department shall issue its decision

regarding the grant or denial of a renewal request received in accordance with this Paragraph

no later than September 1st of the year prior to the year being sought for renewal.

4. EFFECTIVE DATE

A. For the purposes of the Agreement, the Effective Date of the Agreement’s Initial Term shall

be the date the Agreement is fully executed by Department.

B. For the purposes of the Agreement, the Effective Date for the commencement of any

Renewal Term shall be the date on which the last of the following has occurred:

(i) The Renewal Agreement is signed on behalf of Concessionaire and

Department;

(ii) Department dates the Renewal Agreement and forwards a copy to

Concessionaire;

(iii) The required Certificate(s) of Insurance under the Agreement is or are

received by Department;

(iv) Department has approved, in writing, the proposed types and prices of

prepared and prepackaged food and non-alcoholic beverages, alcoholic

beverages, and/or for the charter of the Vessel; and

(v) Mandatory Compliance and Performance Evaluation Meeting #1 has been

scheduled and/or completed with Department, as described in Paragraph 18.

5. CONCESSION PAYMENTS AND INCREASE

A. TERM FEE: For the Initial Term of the Agreement, Concessionaire shall pay Department a

Term Fee of Nine Thousand Seven Hundred ($9,700.00) Dollars in accordance with the

Concession Payment Schedule set forth in Exhibit B as consideration for the Concession,

license and privilege granted. For subsequent Renewal Terms, if any, Concessionaire shall

pay Department in accordance with the Concession Payment Schedule set forth in Exhibit

B.

B. VARIABLE FEE: Concessionaire shall pay a minimum Variable Fee of Two ($2.00)

Dollars per person for each patron of the Concession Operation, as set forth in Exhibit B.

The Variable Fee shall be paid with the submission of the Monthly Report identified in

Paragraph 12.

C. All payments shall be submitted by check made payable to “Treasurer - State of New

Jersey” and be received on or before the scheduled payment date to:

Department of Environmental Protection

Natural and Historic Resources

Office of Leases & Concessions

PO Box 420, Mail Code: 501-04C

Trenton, New Jersey 08625-0420

D. If Concessionaire fails to pay said compensation at such time and in such manner as

specified herein and in Exhibit B, such failure shall constitute a material breach of the

Agreement subject to Suspension of Operations and/or Termination in accordance with the

terms and conditions set forth in Paragraphs 9 and 10.

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E. Department may, at its discretion, require Concessionaire to make all payments for the

Initial Term of the Agreement by certified or cashier’s check only.

F. All late payments shall be assessed a monthly penalty of five (5%) percent of the total

amount due. A late payment shall be any payment received after the tenth (10th) calendar

day of each month.

G. In the event any check for payment is returned to Department, all future payments must be

made by certified or cashier’s check only.

H. After the expiration of the third (3rd) Renewal Term of the Agreement, if any, the Term Fee

shall be increased by three (3%) percent for each of any remaining Renewal Term(s). After

the expiration of the fourth (4th) Renewal Term, if any, Department may also increase the

Term Fee and/or Variable Fee pursuant to a Compensation Analysis performed in

accordance with Paragraph 6. The Term Fee and/or Variable Fee for any Renewal Term will

be calculated by Department and shall be rounded up to the closest dollar.

6. COMPENSATION ANALYSIS

After the expiration of the fourth (4th) Renewal Term of the Agreement, if any, a

Compensation Analysis may be performed. At such time, based on the reported Total Gross

Revenue, performance of the Concession, and/or Department’s existing rates for similarly-

performing operations, Department may choose to increase the Term Fee and/or Variable

Fee for the following Renewal Term(s), if any.

7. HOURS OF OPERATION AND LIMITATIONS

A. During the Initial Term of the Agreement, the Concession shall open and operate from as

soon as practicable after the Effective Date of the Agreement’s Initial Term, through

December 31, 2018 (“Period of Operation”).

B. During any subsequent Renewal Term(s) of the Agreement, the Concession shall open and

operate from January 1st through December 31st (“Period of Operation”).

C. The Concession shall operate during specified hours set in accordance with an operating

schedule pre-approved in writing by Department, prior to commencement of the Period of

Operation for the Initial Term and any subsequent Renewal Term(s) (“Operating Hours”).

Operating Hours shall be submitted to and approved in writing by Department before any

proposed Operating Hours can become effective. Operating Hours shall remain in effect

unless otherwise modified and re-approved in writing by Department. The Concession must

be prepped, fully operational, and capable of serving patrons during the Period of Operation

and during scheduled Operating Hours. Department reserves the right to have

Concessionaire complete a daily attendance log at a location determined by Department.

D. Failure on the part of Concessionaire to open for business as scheduled shall be a material

breach of the Agreement, subject to Suspension of Operations and/or Termination in

accordance with the terms and conditions set forth in Paragraphs 9 and 10. The Marina

Superintendent shall be the sole authority to determine whether an area of the Marina

affecting the Concession Operation will be closed due to inclement weather or otherwise.

Department is not responsible to Concessionaire for any loss or damage caused by such

determination.

E. Concessionaire shall be responsible for adequate staffing and operating the Concession

during Operating Hours, as scheduled. Failure on the part of Concessionaire to open the

Concession during Operating Hours shall be a material breach of the Agreement, subject to

Suspension of Operations and/or Termination in accordance with the terms and conditions

set forth in Paragraphs 9 and 10.

F. Concessionaire shall be accessible by phone during Operating Hours, as established

pursuant to Subparagraph 7(C), and during Standard Business Hours (9 a.m. to 5 p.m.), at a

number to be provided to Department and made publicly available at the Concession

Premises and in any advertisement of the Concession Operation. Failure on the part of

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Concessionaire to be accessible by phone during Operating Hours and Standard Business

Hours shall be a material breach of the Agreement, subject to Suspension of Operations

and/or Termination in accordance with the terms and conditions set forth in Paragraphs 9

and 10.

G. Concessionaire shall also provide Department with a private number where Concessionaire

can be reached at any time.

8. ALTERNATE HOURS OF OPERATION

Concessionaire may request authorization to change or modify pre-approved Operating

Hours. All requests to change or modify pre-approved Operating Hours must be submitted

electronically to both the Marina Superintendent and the Office of Leases and Concessions,

at the addresses set forth in Subparagraph 11(B) ten (10) days in advance of the proposed

effective date. Concessionaire shall not implement any changes in Operating Hours without

written authorization from the Marina Superintendent.

9. SUSPENSION OF OPERATIONS

Concessionaire shall, at the direction of Department, immediately suspend, delay or

interrupt Concessionaire’s operation of all or any part of the Concession Premises for such

period of time as Department may determine to be appropriate to protect the Concession

Premises and/or public health, safety, and welfare due to the occurrence of hazardous work

conditions, emergency conditions, and/or any other cause including, but not limited to,

Concessionaire's failure to perform any of the covenants, agreements, and conditions

contained in the Agreement on its part to be performed. Concessionaire hereby waives any

claim, and Department shall not be liable to any party claiming through Concessionaire, for

damages, payment abatement, or compensation as a result of Department's actions under this

Paragraph or the Agreement. Department's suspension of Concessionaire's operations shall

be in addition to any other right or remedy available by law or in equity.

10. TERMINATION

A. Concessionaire shall exercise direct and personal supervision of the operation of the

Concession Premises designated by Department in Exhibit A. Failure to exercise such

supervision and/or the existence of any condition at the Marina or in the operation of the

Concession which Department determines to be in violation of the terms and conditions of

the Agreement shall be considered to be a material breach in which event Department may

terminate the Agreement by written notice sent by regular and certified mail return receipt

requested. Upon receipt of written notice of termination for violation, Concessionaire shall

have such period of time as provided therein to cure such violation. If such violation is not

cured within the period designated in said notice, termination shall, in the sole discretion of

Department, be effective at the conclusion of the designated period.

B. Without limiting the scope of Subparagraph A of this Paragraph, the Agreement shall

automatically terminate in the event of Concessionaire's failure to pay, when due, any

compensation or other sums or assessments to be paid by Concessionaire under the

Agreement and the continuation of such failure to pay for a period of five (5) calendar days

after Concessionaire's receipt of written notice thereof from Department. Concessionaire’s

failure to provide a utility payment pursuant to Paragraph 26 will result in the non-execution

of the Agreement or a Renewal Agreement by Department, as applicable.

C. Department expressly reserves the right to terminate the Agreement without notice in cases

of emergency or where there exists or may exist risk to public health, safety, or welfare as

determined by Department in its sole discretion.

D. Notwithstanding any provision or language to the contrary, Department may terminate the

Agreement, in whole or in part, solely for the convenience of the State, by ninety (90)

calendar days written notice to Concessionaire sent by regular and certified mail return

receipt requested. Upon receipt of such notice, Concessionaire may choose for such

termination to become effective immediately, or may instead continue to operate the

Concession in accordance with the terms and conditions of the Agreement for a period not

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to exceed ninety (90) calendar days after receipt of the notice or until the end of the current

Agreement Term, whichever occurs sooner.

E. Concessionaire may terminate the Agreement by ninety (90) calendar days written notice to

Department sent by regular and certified mail return receipt requested. Upon receipt of such

notice, Department may choose for such termination to become effective immediately.

Otherwise, Concessionaire shall continue to operate the Concession in accordance with the

terms and conditions of the Agreement for a period not to exceed ninety (90) calendar days

after receipt of the notice, until the end of the current Agreement Term, or upon selection by

Department of a new Concessionaire, whichever occurs sooner.

F. If at any time during the Initial Term or any subsequent Renewal Term of the Agreement,

Concessionaire shall make any assignment for the benefit of creditors or be decreed

insolvent or bankrupt according to law, or if a receiver shall be appointed for

Concessionaire, then Department may terminate the Agreement immediately by notice

served upon the assignee, receiver, trustee or other person in charge, but such termination

shall not release or discharge any payment or obligation then owed by Concessionaire to

Department hereunder.

G. Termination of the Agreement by either Department or Concessionaire, as herein provided,

shall not release or discharge any payment obligation or liability owed by one to the other

under the terms and conditions of the Agreement as of the date of such termination.

H. Upon the expiration or any termination of the Agreement, Department may at once re-enter

and remove any and all persons occupying the Concession Premises. If Concessionaire fails

to remove any property lawfully belonging to and removable by Concessionaire upon the

expiration or termination of the Agreement, Department may appropriate same to its own

use without allowing any compensation therefor, or may remove same at the expense of

Concessionaire. In the event that Concessionaire removes any personal property,

Concessionaire hereby covenants to pay any and all damages which may be caused to the

property of Department by this removal.

I. Any Department-initiated termination of the Agreement for cause or convenience pursuant

to this Paragraph shall be considered sufficient grounds for Department, in at its sole

discretion, to terminate, upon thirty (30) calendar days written notice to Concessionaire, any

and all other Concession Agreements between Department and Concessionaire. Any

Department-initiated termination for cause or convenience of another Concession

Agreement between Department and Concessionaire shall be considered sufficient grounds

for Department, in at its sole discretion, to terminate the Agreement, upon thirty (30)

calendar days written notice to Concessionaire.

11. ELECTRONIC SUBMISSIONS

Concessionaire must have the capacity to send and receive electronic submissions and

communications as a condition of the Agreement. For purposes of the Agreement,

“Electronic Submissions” shall only include the transmission of documents by email.

Concessionaire shall comply with the following terms and conditions:

A. Concessionaire shall electronically submit all reports, including, but not limited to, Monthly

Reports and Annual Reports as described in Paragraphs 12 and 13, by email to:

OfficeofLeases@dep.nj.gov. Failure on the part of Concessionaire to submit reports

electronically shall be a material breach of the Agreement, subject to Suspension of

Operations and/or Termination in accordance with the terms and conditions set forth in

Paragraphs 9 and 10.

B. Concessionaire shall electronically submit all requests to change or modify pre-approved

Operating Hours as described in Subparagraph 7(C), to the Marina Superintendent and the

Office of Leases and Concessions by email to: Maggie.Mitchell@dep.nj.gov and

OfficeofLeases@dep.nj.gov. Failure on the part of Concessionaire to submit all requests to

change or modify Operating Hours electronically shall be a material breach of the

Agreement, subject to Suspension of Operations and/or Termination in accordance with the

terms and conditions set forth in Paragraphs 9 and 10.

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C. Concessionaire shall maintain and monitor on a daily basis an active email address

designated for the Agreement and report any change to the email address during any Term

of the Agreement. Failure on the part of Concessionaire to maintain and monitor the active

email address, designated for the Agreement, shall be a material breach of the Agreement,

subject to Suspension of Operations and/or Termination in accordance with the terms and

conditions set forth in Paragraphs 9 and 10.

12. MONTHLY REPORT

A. A Monthly Report shall be submitted within ten (10) calendar days of the end of each

calendar month of the Period of Operation. Each Monthly Report shall be signed, dated, and

certified by Concessionaire, Concessionaire’s Bookkeeper, or Accountant, and contain a

Statement of Total Gross Receipts, excluding New Jersey State Sales Tax, derived by

Concessionaire from operation of the Concession during the previous month. Each Monthly

Report shall be based on the daily “Z” tapes or Point-of-Service (POS) device equivalent for

that same month showing each day’s sales activity, and the number of days the Concession

operated, total number of trips, number of patrons per trip, and total number of patrons

serviced during that same month. Failure on the part of Concessionaire to provide the

Monthly Report, when due, shall constitute a material breach of the Agreement subject to

Suspension of Operations and/or Termination, in accordance with the terms and conditions

set forth in Paragraphs 9 and 10. Concessionaire shall provide Department with any

additional written clarification and/or information necessary to confirm the accuracy of any

or all of Concessionaire’s Monthly Reports.

B. The signed, dated and certified Monthly Report, along with the Variable Fee identified in

Subparagraph 5(B), must be submitted, in the Department-approved format, within ten (10)

calendar days of the end of each calendar month of the Period of Operation.

13. ANNUAL REPORT

A. Concessionaire shall submit to Department, no later than February 1st following each Term

the Agreement is in effect, an Annual Financial Statement (“Annual Report”) for the prior

Term. Each Annual Report shall be signed, dated, and certified by Concessionaire,

Concessionaire’s Bookkeeper, or Accountant, and contain the following: Total Gross

Revenue, New Jersey State Sales Tax, Operating Expenses, and Net Profit from State Park

Concession Operations. Failure on the part of Concessionaire to submit the Annual Report,

when due, shall constitute a material breach of the Agreement, subject to Suspension of

Operations and/or Termination in accordance with the terms and conditions set forth in

Paragraphs 9 and 10. Concessionaire shall provide Department with any additional

clarification and/or information necessary to confirm the accuracy of Concessionaire’s

Annual Report.

B. The signed, dated and certified Annual Report must be submitted in the Department-

approved format no later than February 1st following each Term the Agreement is in effect.

14. RECORDS AND AUDIT

A. Concessionaire shall maintain complete, accurate, and detailed accounting records of all

transactions pertaining to the Concession Operation covered by the Agreement that will

enable Concessionaire to prepare financial statements in accordance with generally accepted

accounting principles. Concessionaire shall make such records available to any authorized

representative of Department upon request, as often as it is deemed necessary by

Department, to determine the effectiveness of the financial management system and internal

procedures that have been established by Concessionaire, and to ensure compliance with the

terms and conditions of the Agreement and that the financial statements and reports present

fairly the results of Concessionaire's operations pursuant to the Agreement. Said records

shall be maintained and made available to Department and the State of New Jersey for a

period of seven (7) years after the termination or expiration of the Agreement.

B. Concessionaire shall utilize a cash register as part of the Concession Operation.

Concessionaire may request Department approval to also or alternatively utilize a Point of

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Service (POS) device. If approved in writing by Department, Concessionaire may then

utilize a POS device as part of the Concession Operation. Any use of a POS device as part

of the Concession Operation without the required prior Department-written approval shall

be a material breach of the Agreement, subject to Suspension of Operations and/or

Termination in accordance with the Terms and Conditions set forth in Paragraphs 9 and 10.

C. All sales shall be recorded by means of cash registers or Department-approved POS devices

that publicly display the amount of each sale and automatically issue a customer receipt or

certify the amount recorded on a sales slip. Said cash registers or Department-approved POS

devices shall, in all cases, have locked-in sales totals and transactions counters that

constantly accumulate and that cannot, in either case, be reset. In addition, such cash

registers must have a tape located within the register upon which transaction numbers and

sales details are imprinted. Beginning and ending cash register or Department-approved

POS device readings shall be recorded on a daily basis. In the event of technical or electrical

failure of the cash register or Department-approved POS device, Concessionaire shall record

all transactions by hand and issue a sequentially pre-numbered customer receipt in like

manner. Failure to have a working cash register or Department-approved POS device shall

be a material breach of the Agreement subject to immediate Suspension of Operations

and/or Termination in accordance with the terms and conditions set forth in Paragraphs 9

and 10.

Each cash register or Department-approved POS device must have the following:

● Dual Tape/Readable tape (customer must be offered a receipt)

● Customer Display

● Continuous grand total

Each cash register must have the following:

• Cumulative “Z” counter

• Current printed date on detail tape

15. DAILY RECEIPTS

A. Under the Agreement, Concessionaire shall be required to maintain a daily record of all

gross receipts derived from the Concession Operation. This record shall be available at all

times. Concessionaire shall, upon request by Department, provide a breakdown and

accounting of all sales activity for each day. Failure on the part of Concessionaire to

maintain daily receipts constitutes a material breach of the Agreement subject to Suspension

of Operations and/or Termination in accordance with the terms and conditions set forth in

Paragraphs 9 and 10.

B. All cash, credit and debit payments received by Concessionaire shall be deposited into a

single bank account maintained at a bank located within the State of New Jersey and

maintained solely for the subject Concession Operation, through which all financial

transactions (including, but not limited to, deposits, withdrawals, and purchases) must pass.

16. PRICES

Prices to charter the Vessel, as well as for prepared and prepackaged food and non-alcoholic

beverages, and/or alcoholic beverages shall be submitted to and approved by Department in

writing before any proposed price can become effective. Proposed prices to be charged

must be submitted in writing to Department and approved, in writing, by Department prior

to commencement of any Period of Operation. All prices shall remain in effect unless

otherwise modified and re-approved in writing by Department. All changes in pricing will

require the submission of a new price list for all items and services (not just those being

changed) and a written justification for each item Concessionaire is requesting Department’s

approval to change or modify. No price changes are to take effect without the written pre-

approval of Department. All prices shall be properly displayed in prominent places at all

times. Price signage must be professional in appearance, neat, and made of weather-proof

materials.

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17. STAFF

A. Concessionaire shall engage a sufficient number of reliable, competent, and qualified staff

of legal age to operate the Concession within the terms and conditions of the Agreement. If

Department determines that Concessionaire has not provided a sufficient number of reliable,

competent, and qualified staff of legal age for the operation of the Concession,

Concessionaire shall, immediately upon receipt of written notification from Department,

correct the staffing deficiencies described in said notice. If the deficiencies described in said

notice are not corrected by Concessionaire immediately upon receipt of written notification,

Department reserves the right to do the following: (1) suspend the Concession Operation

pending correction of the deficiencies, in accordance with the terms and conditions set forth

in Paragraph 9; (2) obtain the service of reliable, competent, and qualified staff of legal age

to operate the Concession for Concessionaire for the remainder of the then current Period of

Operation; or (3) terminate the Agreement in accordance with the terms and conditions set

forth in Paragraph 10. Concessionaire shall compensate any staff obtained by Department

for the remainder of the then current Period of Operation and shall reimburse Department

for all costs incurred by Department in obtaining appropriate staff. Concessionaire shall not

be entitled to any payment abatement due to any suspension or other action taken by

Department under this Paragraph, and Department shall not be liable to Concessionaire, or

any party claiming through Concessionaire, for any claim, liability, or damages resulting

from said action by Department.

B. All Concession employees must wear uniform apparel and name tags to identify and

distinguish them as Concession employees. The type of uniform apparel and identification

shall be pre-approved by the Marina Superintendent, prior to the start of any Term of the

Agreement. Failure on the part of Concessionaire to comply with the uniform requirement

shall be a material breach of the Agreement subject to Suspension of Operations and/or

Termination in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

18. COMPLIANCE AND PERFORMANCE EVALUATION

Two (2) Mandatory Compliance and Performance Evaluation Meetings shall be conducted

during each Term of the Agreement. Additional meetings may be scheduled at the discretion

of Department to ensure Concessionaire’s effectiveness and compliance. The meetings shall

review all aspects of the Concession Operation, ensuring that quality public services are

being provided on a continuing basis in accordance with the Bid Specifications and the

Agreement, that operational problems/concerns are addressed on a timely basis, and that all

terms and conditions are clearly understood. The meetings shall be held on site with

Department-designated State Park Service staff representative(s), the on-site concession

manager, and a management/supervisory representative of Concessionaire’s firm. A report

form shall be utilized to document the meeting, and to identify any deficiencies and the

corrective action required. A copy of the completed report form shall be provided to the on-

site concession manager or the management/supervisory representative of Concessionaire’s

firm and shall be attached to and made a part of the Agreement. The Mandatory Compliance

and Performance Evaluation Meetings shall be held as follows:

• Meeting #1 - On or before May 1st.

• Meeting #2 - On or before October 1st.

19. EQUIPMENT

A. Concessionaire shall be solely responsible for maintaining all State-owned equipment

installed on the Concession Premises for use by Concessionaire. Department shall not be

responsible for the damage, loss, or maintenance of any equipment installed by

Concessionaire. Concessionaire shall obtain written approval from Department prior to

installation of any of Concessionaire’s equipment on the Concession Premises.

B. In the event Department determines it is deemed necessary, Concessionaire shall be

required to place a minimum of one (1) Portable Toilet Unit (which will be handicap

accessible) on the Concession Premises during each Period of Operation of the

Agreement. Concessionaire will be responsible for the cost to clean and maintain the

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Unit. Concessionaire may, at the discretion of Department, provide an alternative

restroom facility in lieu of the Portable Toilet Unit. Concessionaire’s use of an

alternative restroom facility to meet the requirements of this Subparagraph shall require

the written pre-approval of Department.

C. The storage of supplies, goods, or equipment is only permitted at the Concession Premises,

as designated in Exhibit A. Concessionaire shall not be authorized to store any supplies,

goods or equipment related to the operation of the Concession outside any Term of the

Agreement. Department shall not be responsible or liable for any loss or theft of supplies,

goods or equipment.

D. Department shall not be responsible for any damages or loss of goods or services resulting

from equipment failure. Concessionaire shall obtain insurance coverage pursuant to

Paragraph 35 for possible losses including, but not limited to, equipment failure, vandalism

or weather event.

20. REPAIR

Concessionaire shall, prior to the commencement of the Concession Operation under the

Agreement, provide to Department a type-written concession equipment maintenance plan

for all equipment located on the Concession Premises, together with a schedule for

preventative maintenance and a report on maintenance completion and equipment condition.

Failure on the part of Concessionaire to submit and/or comply with this preventative

maintenance plan and schedule shall be a material breach of the Agreement, subject to

Suspension of Operations and/or Termination in accordance with the terms and conditions

set forth in Paragraphs 9 and 10. The review and Department inspection of the Concession

Premises and equipment will be conducted during routine inspection of the Concession

Premises and as a part of the Mandatory Compliance and Performance Evaluation Meetings.

21. MAINTENANCE OF CONCESSION PREMISES

A. The Concession Premises shall be provided in “as in” condition. Any obligation of

Department, if any, to repair or maintain the Concession Premises is contingent upon the

availability of funds, as specified in Paragraph 22.

B. Concessionaire shall preserve and maintain the Concession Premises in good and clean

condition, reasonable wear and tear excepted. Concessionaire is solely responsible for the

maintenance and cleanliness of the Concession Premises.

C. Upon the expiration of each Term or termination of the Agreement, Concessionaire shall

deliver up peaceable possession of the Concession Premises to Department in as good and

clean condition as the Concession Premises was made available at the commencement of

each Term, reasonable wear and tear excepted. In the event that Concessionaire does not

deliver up possession as herein provided, Department may restore the Concession Premises

to such condition, and the cost thereof shall be paid by Concessionaire to Department within

ten (10) calendar days of Department’s written demand for payment.

22. AVAILABILITY OF FUNDS

Concessionaire expressly acknowledges that the Concession Premises is provided “as is,”

and that any obligation of Department to repair or maintain the Concession Premises is

contingent upon the availability of appropriated funds and receipt of revenues from which

such repair or maintenance can be funded. Department shall have no obligation for such

repair or maintenance unless and until such funds are appropriated each fiscal year to

Department by the State Legislature and made available through receipt of revenues.

23. NON-INTERFERENCE WITH STATE MARINA OPERATION

Concessionaire shall conduct all of its operations under the Agreement so as not to interfere

with, impair, or prevent maintenance and operation of the Marina by Department, or

interfere with or impair the safe and quiet use and enjoyment thereof by the public,

neighboring residence, and berth holders. Concessionaire shall coordinate with Department

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all activities which could adversely affect Department’s maintenance and operation of the

Marina and/or the safe and quiet use and enjoyment thereof by the public, neighboring

residence, and berth holders and shall implement all measures reasonably required by

Department to minimize such adverse effects. Concessionaire shall, upon notice from

Department and within the time period prescribed in said notice, take all such action as may

be required by Department to eliminate any such interference or impairment occasioned by

the Concession Operation. Failure to complete any such action within the time prescribed in

said notice shall constitute grounds for Suspension of Operations and/or Termination of the

Agreement in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

24. INSPECTION

Concessionaire shall make the Concession Premises available for inspection at any time by

any authorized representative of Department to assure compliance with the terms and

conditions of the Agreement.

25. GARBAGE DISPOSAL, RECYCLING, AND BIODEGRADABLE MATERIALS

A. Concessionaire shall be responsible for maintaining the cleanliness of the Concession

Premises. Concessionaire shall ensure placement of all garbage and trash generated by the

Concession Operation in designated containers and that said containers are emptied daily, or

as more frequently required by Department, at a location within the Marina designated by

Department. Disposal costs from this latter location shall be borne by Department.

Concessionaire shall provide such additional trash containers as may be required to keep the

immediate Concession Premises clean at all times. The type of trash containers provided by

Concessionaire shall be approved by Department prior to use.

B. Concessionaire shall comply with any and all county and local recycling requirements.

C. Any wrappings, containers, bowls, plates, cartons, or cups that are not intended for reuse

must be composed of biodegradable material. Biodegradable material is defined as follows:

MATERIAL CAPABLE OF BEING BROKEN DOWN FROM A COMPLEX

MOLECULAR STRUCTURE INTO SIMPLER GASSES AND ORGANIC

COMPOUNDS BY LIVING MICROORGANISMS.

D. No glass containers of any kind shall be used to dispense any food and/or beverages.

26. UTILITIES

Concessionaire shall be responsible for the payment of any and all utility charges related to

the Concession Operation for each Term of the Agreement. The Marina Superintendent

shall determine if utility charges for the Concession can be segregated from the Non-

Concession portion of the Marina. If the utility charges can be segregated, Concessionaire

shall be solely responsible for the transfer of such utility meter(s) to an account in its name.

If the utility charges cannot be segregated, a utility payment shall be made by

Concessionaire to Department as additional compensation in addition to the Concession

Payments under Paragraph 5. Such utility payment shall be made by separate check, made

payable to “Treasurer – State of New Jersey” upon return of a Concessionaire-signed

Agreement or Renewal Agreement. For the Initial Term of the Agreement, such utility

payment shall be Three Hundred ($300.00) Dollars. Such utility payment for any Renewal

Term(s) of the Agreement shall be determined by Department at the time of such renewal.

Concessionaire’s failure to provide such payment, if required, shall result in the non-

execution of the Agreement or subsequent Renewal Agreement by Department, as

applicable.

27. TAXES

A. All taxes and property tax assessments, if any, arising out of the operation of the Concession

and the use and occupancy of the Concession Premises shall be the sole responsibility of

Concessionaire and shall be promptly paid by Concessionaire when due, regardless of

whether such tax or assessment is assessed within or outside a Term of the Agreement.

Concessionaire shall provide to Department copies of all tax or assessment notices received

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from any government agency, municipality or county. Payment shall remain a continuing

obligation of Concessionaire after any Term of the Agreement and/or the expiration or

termination of the Agreement, and Department is authorized to make a demand for payment

and take any and all steps to ensure payment. Concessionaire shall furnish to Department,

within ten (10) calendar days of demand therefor, proof of the payment of any such tax or

assessment. Concessionaire’s failure to timely pay any tax or assessment or otherwise

comply with this Subparagraph shall constitute a material breach of the Agreement subject

to Suspension of Operations and/or Termination, in accordance with the terms and

conditions set forth in Paragraphs 9 and 10.

B. Concessionaire and its subcontractor, if any, and each of their affiliates shall, for any and all

Term(s) of the Agreement, collect and remit to the Director of the Division of Taxation in

the Department of the Treasury the use tax due pursuant to the “Sales and Use Tax Act,”

P.L.1966, c. 30 (N.J.S.A. 54:32B-1 et. seq.) on all of their sales of tangible personal property

delivered into this State. Any questions in this regard can be directed to the Division of

Revenue at https://www.state.nj.us/treasury/revenue/revgencode.shtml.

28. ADVERTISEMENT AND PROMOTION

A. Concessionaire shall not advertise in any manner or form on or about the Concession

Premises or any other part of the Marina, except by means of such signs or forms of

advertising as first shall be approved in writing by Department.

B. Concessionaire shall, in all promotion and advertisement of the Concession and/or any

scheduled event(s) at or pertaining to the Concession Operation, include that the Marina is

administered by the State of New Jersey, Department of Environmental Protection, Division

of Parks and Forestry, State Park Service.

C. Prior to the implementation of any and all promotion and advertisement of the Concession

and/or any scheduled event(s) at or pertaining to the Concession Operation, Concessionaire

shall submit, and obtain Department’s written approval of, all such promotion(s) and

advertisement(s).

29. CONSTRUCTION AND IMPROVEMENTS

Concessionaire shall not erect any structures, buildings, or additions to the Concession

Premises without first obtaining the written approval of Department.

30. REPORT OF INJURY

Any injury that shall occur to Concessionaire, its officers, servants, agents, employees,

contractors, or invitees requiring medical intervention of which Concessionaire is notified,

shall be reported to Department immediately by calling 1-877-WARN DEP (1-877-927-

6337) and also reported in writing to the addresses set forth in Paragraph 49 within one (1)

calendar day of the incident.

31. NEW JERSEY CONFLICT OF INTEREST LAW

The New Jersey Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq. and Executive Order

189 (1988), prohibit certain actions by persons or entities which provide goods or services to

any State Agency. Specifically:

A. No Concessionaire shall pay, offer to pay, or agree to pay, either directly or indirectly,

any fee, commission, gift, gratuity, or other thing of value of any kind to any State

officer or employee or special State officer or employee, as defined by N.J.S.A. 52:13D-

13b. and e., in the Department of the Treasury or any other agency with which such

Concessionaire transacts or offers or proposes to transact business, or to any member of

the immediate family, as defined by N.J.S.A. 52:13D-13i., of any such officer or

employee, or any partnership, firm, or corporation with which they are employed or

associated, or in which such officer has an interest within the meaning of N.J.S.A.

52:13D-13g.

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B. The solicitation of any fee, commission, compensation, gift, gratuity or other thing of

value by any State officer or employee or special State officer or employee from any

Concessionaire shall be reported, in writing forthwith by Concessionaire to the Attorney

General and the Executive Commission on Ethical Standards.

C. No Concessionaire may, directly or indirectly, undertake any private business,

commercial or entrepreneurial relationship with, whether or not pursuant to

employment, contract or other agreement, express or implied, or sell any interest in such

Concessionaire to, any State officer or employee or special State officer or employee

having any duties or responsibilities in connection with the purchase, acquisition or sale

of any property or services by or to any State agency or any instrumentality thereof, or

with any person, firm or entity with which he is employed or associated or in which he

has an interest within the meaning of N.J.S.A. 52:13D-13g. Any relationships subject to

this provision shall be reported in writing forthwith to the Executive Commission on

Ethical Standards, which may grant a waiver of this restriction upon application of the

State officer or employee or special State officer or employee upon a finding that the

present or proposed relationship does not present the potential, actuality or appearance

of a conflict of interest.

D. No Concessionaire shall influence, or attempt to influence or cause to be influenced, any

State officer or employee or special State officer or employee in his official capacity in

any manner which might tend to impair the objectivity or independence of judgment of

said officer or employee.

E. No Concessionaire shall cause or influence, or attempt to cause or influence, any State

officer or employee or special State officer or employee to use, or attempt to use, his

official position to secure unwarranted privileges or advantages for Concessionaire or

any other person.

F. The provisions cited above in Subparagraphs 31(A) through 31(E) shall not be construed

to prohibit a State officer or employee or special State officer or employee from

receiving gifts from or contracting with Concessionaire under the same terms and

conditions as are offered or made available to members of the general public subject to

any guidelines the Executive Commission on Ethical Standards may promulgate.

32. SOLICITATION

Concessionaire shall warrant that no person has been employed directly or indirectly to

solicit or secure the Agreement in violation of the provision of Section 10, Chapter 48 of the

Laws of 1954, N.J.S.A. 52:34-15, and that the Laws of the State of New Jersey relating to

the procurement or performance of the Agreement have not been violated and shall not be

violated by any conduct of Concessionaire, including the paying or giving directly or

indirectly of any fee, commission, compensation, gift, gratuity, or consideration of any kind

to any State employee, officer, or official.

33. INDEPENDENT PRINCIPAL

Concessionaire’s status shall be that of an independent principal and not as an agent or

employee of Department.

34. INDEMNIFICATION

A. Concessionaire shall, for itself, its successors, and assigns, assume all risk and liabilities

arising out of the management, maintenance, and operation of the Concession and covenants

to defend, protect, indemnify, and save harmless Department and each and every of its

officers, agents, servants, employees, successors, and assignees and hereby releases

Department and each and every of its officers, agents, servants, employees, successors, and

assignees from and against any and all such liabilities, losses, damages, costs, expenses

(including all attorneys’ fees and expenses), causes of action, suits, claims, demands, or

judgments of any nature arising from the following:

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(i) any injury to, or the death of, any person in, on, or about, or any damage to

property which occurs in, on, or about the Concession Premises or upon any

sidewalk, walkway, or patio within the Concession Premises or in any

manner growing out of or connected with the use, non-use, condition, or

occupancy of the Concession Premises, or the construction or repair of any

improvements of the Concession Premises;

(ii) any act, error, or omission of Concessionaire, its officers, agents, servants,

employees, contractors, invitees, and anyone claiming by or through

Concessionaire in the performance of the Agreement;

(iii) violation of any term or condition of the Agreement by Concessionaire, its

officers, agents, servants, employees, contractors, invitees, and anyone

claiming by or through Concessionaire in the performance of the Agreement;

and

(iv) violation by Concessionaire, its officers, agents, servants, employees,

contractors, invitees, and anyone claiming by or through Concessionaire in

the performance of the Agreement of any contracts and agreements of record

concerning the Concession Premises and restrictions of record or any law,

ordinance, or regulation affecting the Concession Premises or any part

thereof or the ownership, occupancy, or use thereof.

B. Department shall, as soon as practicable after a claim has been made against it, give written

notice thereof to Concessionaire, along with full and complete particulars of the claim. If

suit is brought against Department or any of its officers, agents, servants, and/or employees,

Department shall expeditiously forward or have forwarded to Concessionaire every demand,

complaint, notice, summons, pleading, or other document received by or then in the

possession of Department or its representatives.

C. It is expressly agreed and understood that any approval by Department of Concessionaire's

operation of the Concession Premises shall not operate to limit the obligations of

Concessionaire assumed pursuant to the Agreement.

D. Concessionaire's liability pursuant to this Paragraph shall continue after the termination or

expiration of the Agreement with respect to any liability, loss, cost, expense (including all

attorneys' fees and expenses), damage, cause of action, suit, claim, demand, or judgment

resulting from actions or inactions occurring prior to such termination or expiration.

E. Concessionaire's indemnification obligations are not limited by, but are in addition to, the

insurance obligations contained in the Agreement.

35. INSURANCE

A. Concessionaire shall, at its sole cost and expense, obtain and maintain at all times during

each Term of the Agreement, insurance of the types and in the amounts hereinafter

provided:

(i) Protection and Indemnity Insurance as broad as that provided by the standard

basic, unamended, and unendorsed occurrence coverage forms currently in

use in the State of New Jersey, which shall not be circumscribed by any

endorsement limiting the breadth of coverage. Limits of liability shall be

maintained at the level of Five Million ($5,000,000) Dollars per occurrence

for bodily injury and property damage and a Ten Million ($10,000,000)

Dollars annual aggregate. This can be accomplished with a combination of

Protection and Indemnity and Commercial Umbrella policies; and

(ii) Property insurance to cover loss or damage on a "Special Causes of Loss"

form of coverage against fire, water, wind, storm, loss, theft, and damage on

the Vessel and/or any structures on the Concession Premises and all fixtures,

equipment, and other property attached thereto and/or physically

incorporated therein and the contents owned by Concessionaire and located

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in or on the Concession Premises. Said insurance shall be in an amount not

less than the full value of such structures, fixtures, equipment, property, and

contents. The value of said structures, fixtures, equipment, property, and

contents shall be determined by Concessionaire using whatever procedures

Concessionaire considers appropriate. Said policy shall be written so as to

provide that the insurer waives all right of subrogation against Department in

connection with any loss or damage covered by the policy; and

(iii) Worker’s Compensation Insurance applicable to the Laws of the State of

New Jersey and Employer's Liability Insurance with limits of not less than

One Million ($1,000,000) Dollars Bodily Injury By Accident (Each

Accident) and One Million ($1,000,000) Dollars Bodily Injury By Disease

(Each Employee) with an aggregate limit of One Million ($1,000,000)

Dollars Bodily Injury By Disease (Policy Limit); and

(iv) Comprehensive Automobile Liability Insurance, which shall be written to

cover any automobile or trailer used by Concessionaire. Limits of liability to

cover bodily injury and property damage shall not be less than One Million

($1,000,000) Dollars per person or per accident. Coverage must include

hired and non-owned vehicles. A MCS-90 certificate shall be filed with the

State of New Jersey if hazardous materials or waste will be transported

during operation of the Concession; and

(v) Such other insurance and in such amounts as may from time to time be

reasonably required by Department.

B. All insurance coverage required to be maintained by Concessionaire in accordance with the

Agreement shall be issued by an insurance company with an A- VIII or better rating by

A.M. Best & Company authorized and approved to do business in New Jersey. All policies

except for Worker’s Compensation shall name the State of New Jersey Department of

Environmental Protection as an additional insured and include the blanket additional insured

endorsement or its equivalent. The certificate(s) of insurance shall identify the Concession

Number assigned to the Agreement and the location(s) of the Concession Premises in the

Description of Operations box and shall list the State of New Jersey, Department of

Environmental Protection, Natural and Historic Resources, Office of Leases & Concessions,

P.O. Box 420, Mail Code: 501-04C, Trenton, New Jersey 08625-0420 in the Certificate

Holder box.

C. When Concessionaire returns the Agreement or any subsequent Renewal Agreement, signed

by Concessionaire, to Department for signature, Concessionaire shall provide Department

with all current and valid certificate(s) of insurance evidencing that Concessionaire has

obtained all insurance coverage in accordance with the Agreement. Failure to provide a

certificate(s) of insurance at the time of Concessionaire's return of the Agreement or any

subsequent Renewal Agreement shall result in the non-execution of the Agreement or

subsequent Renewal Agreement by Department, as applicable. Concessionaire also shall

provide Department with a valid certificate(s) of renewal of the insurance within thirty (30)

calendar days of the expiration of the policies so that Department is continuously in

possession of current documentation that Concessionaire has obtained and is maintaining, in

full force and effect, all insurance required under the Agreement. Concessionaire also shall,

upon request, provide Department with copies of each policy required under the Agreement,

certified by the agency or underwriter to be true copies of the policies provided by

Concessionaire.

D. Concessionaire expressly understands and agrees that any insurance protection required by

the Agreement shall in no way limit Concessionaire's indemnification obligations assumed

in the Agreement and shall not be construed to relieve Concessionaire from liability in

excess of such insurance coverage, nor shall it preclude Department from taking such other

actions as are available to it under any provision of the Agreement and as otherwise

provided for at law or in equity.

E. In the event that: (i) Concessionaire fails or refuses to renew any of its insurance policies or

to provide Department with timely certificate(s) of insurance showing that Concessionaire is

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maintaining insurance coverage in full force and effect to the extent required by the

Agreement, or (ii) any policy is canceled, terminated, or modified so that the insurance does

not meet the requirements of the Agreement, Department shall consider Concessionaire to

be in material breach of the Agreement, subject to Suspension of Operations and/or

Termination in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

F. The limits of insurance policies described in this Paragraph shall be reviewed by

Department and Concessionaire from time to time. Concessionaire shall increase the limits

of said policies to meet changed circumstances including, but not limited to, changes in the

relevant U.S. Bureau of Labor Statistics Consumer Price Index and changes indicated by the

course of plaintiffs' verdicts in personal injury actions.

36. COMPLIANCE WITH LAWS, LICENSES, PERMITS, AND INSURANCE

POLICIES

A. For each Term of the Agreement, Concessionaire shall obtain, pay for, maintain, and

comply with all licenses, permits, certifications, authorizations, approvals, or any other

documents required by all applicable government agency having jurisdiction over the

Concession Premises or the conduct of Concessionaire's operations thereon. Concessionaire

shall provide Department with written evidence that such applicable licenses, permits,

authorizations, or other required documents have been obtained prior to commencement of

the activity or operation covered by the license, permit, authorization, or other

documentation. No operation shall begin until Concessionaire has provided such written

evidence to Department.

B. Concessionaire shall, at its sole cost and expense, comply with all duly promulgated and

applicable federal and State statutes, laws, rules, ordinances, regulations, and orders

affecting the conduct of the Concession Operation described in the Agreement; specifically,

but not limited to, all U.S. Coast Guard regulations now or hereafter in effect, as well as

N.J.A.C. 7:2-13, State Marinas, of which an unofficial, courtesy copy is attached as Exhibit

C.

C. Concessionaire shall comply with the requirements of all insurance policies required by the

Agreement.

D. If Concessionaire:

(i) receives a notice of failure to comply with the insurance required by the

Agreement;

(ii) is issued a summons or any notice of violation of any license, permit,

certification, authorization, approval, or any similar instruments required by

any governmental authority having jurisdiction necessary to maintain and

operate the Concession in accordance with the provisions of the Agreement;

or

(iii) is issued a summons for violation of any duly promulgated and applicable

federal, State, county, municipal, and other governmental statutes, laws,

rules, ordinances, regulations, or orders affecting the Concession Operation

or any part thereof,

Concessionaire shall immediately forward a copy of the notice of non-compliance,

summons, or notice of violation to Department, and Concessionaire shall have such amount

of time to correct said violation as is prescribed in the notice or summons. If such violation

is not cured within the prescribed period or any extension thereof, it shall be deemed a

material breach of the Agreement, and Department may suspend Concessionaire's operation

of all or the affected portion of the Concession Premises in accordance with the terms and

conditions set forth in Paragraph 9, and/or terminate the Agreement in accordance with the

terms and conditions set forth in Paragraph 10.

E. Concessionaire shall indemnify Department against all liabilities, claims, losses, damages,

costs, expenses (including all attorneys’ fees and expenses), causes of action, suits,

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demands, judgments, or payments of any kind arising from Concessionaire’s failure or

omission to comply with any such insurance policy, license, permit, certification,

authorization, approval, or any applicable federal or State statute, law, rule, ordinance,

regulation, or order.

37. SERVICE PERFORMANCE WITHIN U.S.

Concessionaire agrees, in accordance with Executive Order 129 (2004) and N.J.S.A. 52:34-

13.2 (P.L. 2005, c. 92), that all services performed under the Agreement or any subcontract

awarded under the Agreement shall be performed within the United States. In the event that

all services performed under the Agreement or any subcontract awarded under the

Agreement shall not be performed within the United States, Concessionaire shall send

Department a letter that states with specificity the reasons why the services cannot be so

performed. Any such letter shall require review and approval pursuant to N.J.S.A. 52:34-

14.2 prior to execution of the Agreement or the delivery of the services which will not be

performed within the United States. Unless previously approved by Department, a shift to

performance of services outside the United States during any Term of the Agreement shall

be deemed a material breach, subject to Suspension of Operations and/or Termination in

accordance with the terms and conditions set forth in Paragraphs 9 and 10.

38. PUBLIC USE

Concessionaire’s operation and the Agreement shall not be construed so as to affect the

privileges accorded to the public’s use of the Marina.

39. NO DISCRIMINATION

A. Concessionaire shall comply with all provisions of the Americans with Disabilities Act

(ADA), P.L 101-336, in accordance with 42 U.S.C. 12101, et seq.

B. Concessionaire shall not discriminate, and shall abide by all anti-discrimination laws,

including Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d-2000d-

4; the discrimination and affirmative action provisions of N.J.S.A. 10:2-1 through

N.J.S.A. 10:2-4; the New Jersey Law Against Discrimination, N.J.S.A. l0:5-1 et seq.; and

all rules and regulations promulgated pursuant thereto.

C. Specifically, Concessionaire shall not unlawfully discriminate: 1) against any person,

employee, or applicant for employment, or 2) in allowing access to and use of the

Concession Premises.

40. AFFIRMATIVE ACTION AND EQUAL EMPLOYMENT REQUIREMENTS

A. Pursuant to N.J.A.C. 17:27-3.5, Concessionaire agrees that:

(i) Concessionaire or its subcontractor, where applicable, will not discriminate

against any employee or applicant for employment because of age, race,

creed, color, national origin, ancestry, marital status, affectional or sexual

orientation, gender identity or expression, disability, nationality or sex.

Concessionaire will ensure that equal employment opportunity is afforded to

such applicants in recruitment and employment, and that all employees are

treated during employment, without regard to their age, race, creed, color,

national origin, ancestry, marital status, affectional or sexual orientation,

gender identity or expression, disability, nationality or sex. Such equal

employment opportunity shall include, but not be limited to, the following:

employment, upgrading, demotion, or transfer; recruitment or recruitment

advertising; layoff or termination; rates of pay or other forms of

compensation; and selection for training, including apprenticeship.

Concessionaire agrees to post in conspicuous places, available to employees

and applicants for employment, notices to be provided by the public agency

compliance officer setting forth provisions of this nondiscrimination clause;

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(ii) Concessionaire or its subcontractor, where applicable, shall, in all

solicitations or advertisements for employees placed by or on behalf of

Concessionaire, state that all qualified applicants will receive consideration

for employment without regard to age, race, creed, color, national origin,

ancestry, marital status, affectional or sexual orientation, gender identity or

expression, disability, nationality or sex;

(iii) Concessionaire or its subcontractor, where applicable, shall send to each

labor union, with which it has a collective bargaining agreement, a notice, to

be provided by the agency contracting officer, advising the labor union of

Concessionaire’s commitments under this chapter and shall post copies of

the notice in conspicuous places available to employees and applicants for

employment; and

(iv) Concessionaire or its subcontractor, where applicable, agrees to comply with

all regulations promulgated by the Treasurer pursuant to N.J.S.A. 10:5-31 et

seq., as amended and supplemented from time to time, and codified at

N.J.A.C. 17:27-1.1 et seq.

B. Further, pursuant to N.J.A.C. 17:27-3.7, Concessionaire agrees that:

(i) Concessionaire and its subcontractor, if any, agrees to make good faith

efforts to meet targeted county employment goals established in accordance

with N.J.A.C. 17:27-5.2.

(ii) Concessionaire and its subcontractor, if any, agrees to inform in writing its

appropriate recruitment agencies including, but not limited to, employment

agencies, placement bureaus, colleges, universities, and labor unions, that it

does not discriminate on the basis of age, race, creed, color, national origin,

ancestry, marital status, affectional or sexual orientation, gender identity or

expression, disability, nationality or sex, and that it will discontinue the use

of any recruitment agency which engages in direct or indirect discriminatory

practices.

(iii) Concessionaire and its subcontractor, if any, agrees to revise any of its

testing procedures, if necessary, to assure that all personnel testing conforms

with the principles of job-related testing, as established by the statutes and

court decisions of the State of New Jersey and as established by applicable

Federal law and applicable Federal court decisions.

(iv) In conforming with the targeted employment goals, Concessionaire and its

subcontractor, if any, agrees to review all procedures relating to transfer,

upgrading, downgrading and layoff to ensure that all such actions are taken

without regard to age, race, creed, color, national origin, ancestry, marital

status, affectional or sexual orientation, gender identity or expression,

disability, nationality or sex, consistent with the statutes and court decisions

of the State of New Jersey, and applicable Federal law and applicable

Federal court decisions.

41. PAYMENT ABATEMENT

Concessionaire acknowledges that the Marina is subject to unscheduled closures for reasons

of health, public welfare, public safety, and government closures. These closures may result

from inclement weather, water quality, staffing, or emergencies. Payment abatements will

not be given if Concessionaire is unable to operate the Concession Premises for any reason.

42. FINAL DECISION

Concessionaire covenants that the decision of the Commissioner of Department, relative to

the bidding process and/or award of the Agreement, as well as the performance of the terms

and conditions of the Agreement, shall be final and conclusive.

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43. CORPORATION

A. For any Concessionaire that presents itself or represents itself as a corporation operating or

doing business in the State of New Jersey, all papers of incorporation, including authorized

agents for receipt of legal documents, shall be provided to Department, along with renewals,

changes, or any other documents that in any way affect the current or future status of

Concessionaire as a legal corporation.

B. Concessionaire shall adopt a resolution authorizing the execution of the Agreement by

Concessionaire. Concessionaire shall submit a copy of said resolution to Department prior

to execution of the Agreement by Department.

44. SUBCONTRACTING

A. Concessionaire may not subcontract without the prior written consent of Department. Such

consent, if granted, shall not relieve Concessionaire of any of its responsibilities under the

Agreement, nor shall it create privity of contract between Department and any

subcontractor. If Concessionaire uses a subcontractor to fulfill any of its obligations,

Concessionaire shall be responsible for the subcontractor’s performance, compliance with

all of the terms and conditions of the Agreement, and compliance with the requirements of

all applicable laws. Any subcontracting without the prior written consent of Department

shall be a material breach of the Agreement, subject to Suspension of Operations and/or

Termination in accordance with the terms and conditions set forth in Paragraphs 9 and 10.

B. If subcontracting is approved pursuant to Subparagraph 44(A), Concessionaire shall

provide, on a monthly and cumulative basis, a breakdown in accordance with the budget

submitted, of all monies paid to any small business, minority or woman-owned

subcontractor(s). This breakdown shall be sent to the Chief of Operations, Division of

Revenue, P.O. Box 628, Trenton, NJ 08646.

45. NO CONTRACTUAL RELATIONSHIP BETWEEN SUBCONTRACTORS AND

DEPARTMENT

Nothing contained in any Agreement documents, including the Bid Specifications and

Concessionaire’s bid or proposal for the Agreement, shall be construed as creating any

contractual relationship between any subcontractor and Department.

46. ASSIGNMENT OF AGREEMENT OR SALE OF INTERESTS

Concessionaire shall not assign the Agreement or sell controlling interest in the Concession

without prior written approval from Department. Any attempt to assign or sell controlling

interest without prior written approval from Department shall be a material breach of the

Agreement, subject to Suspension of Operations and/or Termination in accordance with the

terms and conditions set forth in Paragraphs 9 and 10.

47. PAY TO PLAY RESTRICTIONS AND CONTRIBUTION DISCLOSURE

A. In order to safeguard the integrity of State government procurement by imposing restrictions

to insulate the negotiation and award of State contracts from political contributions that pose

the risk of improper influence, purchase of access, or the appearance thereof, the Legislature

has enacted P.L. 2005, c. 51 (codified at N.J.S.A. 19:44A-20.13 to -20.25) (Chapter 51) on

March 22, 2005, effective retroactive to October 15, 2004, superseding the terms of

Executive Order 134 (2004). In addition, on September 24, 2008, Executive Order 117 was

issued and made effective on November 15, 2008 (EO 117) which set forth additional

limitations on the ability of executive branch agencies to contract with business entities that

have made or solicited certain contributions.

Chapter 51 and EO 117 restrict business entities which agree to certain contracts or

agreements with the State from making or soliciting certain contributions. Compliance with

Chapter 51 and EO 117 is a material term and condition of the Bid Specifications and

Agreement, and binding upon the parties thereto upon the entry of all applicable contracts.

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Thus, pursuant to the requirements of Chapter 51 and EO 117, it shall be a material breach

of the terms of the Agreement, subject to Suspension of Operations and/or Termination in

accordance with the terms and conditions set forth in Paragraphs 9 and 10, for

Concessionaire to do any of the following during any Term of the Agreement:

(i) make or solicit a contribution in violation of Chapter 51 or EO 117;

(ii) knowingly conceal or misrepresent a contribution given or received;

(iii) make or solicit contributions through intermediaries for the purpose of

concealing or misrepresenting the source of the contribution;

(iv) make or solicit any contribution on the condition or with the agreement that

it will be contributed to a campaign committee or any candidate or holder of

the public office of Governor, or of Lieutenant Governor, or to any State,

county, or municipal party committee, or any legislative leadership

committee;

(v) engage or employ a lobbyist or consultant with the intent or understanding

that such lobbyist or consultant would make or solicit any contribution,

which if made or solicited by Concessionaire itself, would subject

Concessionaire to the restrictions of Chapter 51 or EO 117;

(vi) fund contributions made by third parties, including consultants, attorneys,

family members, and employees;

(vii) engage in any exchange or contributions to circumvent the intent of Chapter

51 or EO 117; or

(viii) directly or indirectly, through or by any other person or means, do any act

which would subject Concessionaire to the restrictions of Chapter 51 or EO

117. It is Concessionaire’s continuing obligation to report any contributions

it makes during any and all Term(s) of the Agreement.

B. Concessionaire shall submit the Two-Year Chapter 51/Executive Order 117 Vendor

Certification and Disclosure of Political Contributions Form, certifying that no

contributions prohibited by Chapter 51 have been solicited or made by Concessionaire

and reporting all contributions Concessionaire made during the preceding four years to

any political organization organized under 26 U.S.C. § 527 of the Internal Revenue Code

that also meets the definition of a “continuing political committee” within the meaning of

N.J.S.A. 19:44A-3(n) and N.J.A.C. 19:25-1.7. The required Certification and Disclosure

Form can be found in the Prequalification Application, which Concessionaire is required

to complete, and submit, with any bid. The Prequalification Application is available at:

http://www.njparksandforests.org/parks/business_ops/current_concession.htm. If

Concessionaire has a currently valid Two-Year Certification and Disclosure Form, it may

be submitted instead of a new form.

The State Treasurer or his designee shall review the Disclosures submitted by

Concessionaire pursuant to this Subparagraph, as well as any other pertinent information

concerning the contributions or reports thereof by Concessionaire prior to award or

during the term of the Agreement. If the State Treasurer determines that any contribution

or action by Concessionaire violated Chapter 51 and EO 117, the State Treasurer shall

disqualify Concessionaire from award of the Agreement. If the State Treasurer or his

designee determines that any contribution or action constitutes a breach of the Agreement

that poses a conflict of interest pursuant to Chapter 51 or EO 117, the State Treasurer

shall disqualify Concessionaire from award of the Agreement.

C. Concessionaire shall submit the Chapter 271 Vendor Certification and Political

Contribution Disclosure Form, disclosing its political contributions within the

immediately preceding twelve (12) month period. The required Certification and

Disclosure Form can be found in the Prequalification Application, which Concessionaire

is required to complete, and submit, with any bid. The Prequalification Application is

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available at:

http://www.njparksandforests.org/parks/business_ops/current_concession.htm.

No prospective Concessionaire will be precluded from being retained by virtue of the

information provided in the Chapter 271 Vendor Certification and Political Contribution

Disclosure Form, provided the form is fully and accurately completed.

D. Concessionaire is required, on a continuing basis, to report any contributions and

solicitations Concessionaire makes during any Term of the Agreement at the time any such

contribution or solicitation is made. Failure to do so is a breach of the Agreement, subject to

Suspension of Operations and/or Termination in accordance with the terms and conditions

set forth in Paragraphs 9 and 10.

E. Concessionaire shall file an annual disclosure statement on political contributions with the

New Jersey Election Law Enforcement Commission (ELEC) pursuant to N.J.S.A. 19:44A-

20.27 (P.L. 2005, c. 271, section 2) if Concessionaire receives contracts in excess of Fifty

Thousand ($50,000.00) dollars from public entities in a calendar year. It is Concessionaire’s

responsibility to determine if filing is necessary. Failure to so file can result in the

imposition of financial penalties by ELEC. Additional information about this requirement is

available from ELEC at 888-313-3532 or at www.elec.state.nj.us.

48. NEW JERSEY BUSINESS REGISTRATION

Concessionaire must submit with any bid a copy of a valid New Jersey Business

Registration for itself and its subcontractor, if any. If Concessionaire or its subcontractor,

if any, is not already registered with the New Jersey Division of Revenue, registration can

be completed online at the Division of Revenue Website:

http://www.state.nj.us/treasury/revenue/busregcert.shtml.

49. SUBMISSIONS, APPROVALS, AND NOTICES

Department and Concessionaire agree that all submissions, approvals, and notices which

may be required under the Agreement shall be forwarded by email or fax, regular and

certified mail return receipt requested and addressed as follows:

To Department: Department of Environmental Protection

Natural and Historic Resources

Office of Leases & Concessions

PO Box 420, Mail Code: 501-04C

Trenton, New Jersey 08625-0420

Fax: (609) 984-0836

Email: OfficeofLeases@dep.nj.gov

Copy to Marina Superintendent: Leonardo State Marina

102 Concord Avenue

Leonardo, NJ 07737

Fax: (732) 291-0638

Email: Maggie.Mitchell@dep.nj.gov

To Concessionaire: Name

Title and/or Entity Designation

Street Address

Town, NJ Zip Code

Email:

Either Department or Concessionaire may, at any time, change such address(es) by mailing,

to the address(es) of the other, above, a notice of the change at least ten (10) calendar days

prior to the effective date of such change.

50. RECEIPT OF WRITTEN NOTICE

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Department and Concessionaire agree that the receipt of a written notice is considered five

(5) calendar days after the date on the said written notice.

51. PREQUALIFICATION APPLICATION

Concessionaire shall submit a completed Prequalification Application along with any bid.

The Prequalification Application is available at:

http://www.njparksandforests.org/parks/business_ops/current_concession.htm.

52. CONCESSION BID EVALUATION & SELECTION PROCESS

Department shall review and evaluate all bids in accordance with the procedures and

upon the criteria outlined in the Concession Bid Evaluation & Selection Process,

available at:

http://www.njparksandforests.org/parks/business_ops/current_concession.htm.

53. PREFERENCE FOR WOOD, PAPER PRODUCTS DERIVED FROM

SUSTAINABLY-MANAGED FORESTS OR PROCUREMENT SYSTEMS

Pursuant to N.J.S.A. 52:32-45, any bid that calls for the use of wood or paper products

derived from sustainably managed forests or procurement systems shall receive

preference, whenever possible, where relevant. Accordingly, Department shall give such

preference when entering into or renewing the Agreement, whenever possible, where

relevant.

54. NEGOTIATION AND BEST AND FINAL OFFER (BAFO)

Department reserves the right to enter into negotiations with and/or invite submission of a

Best and Final Offer (BAFO) from one bidder or multiple bidders in accordance with the

procedures as outlined in the Concession Bid Evaluation & Selection Process.

55. REJECTION OF PROPOSAL

Department reserves the right to reject, in its sole discretion, any or all bids at any point in

the Concession Bid Evaluation & Selection Process.

56. CONTRACT AMOUNT

Compensation amount(s), when stated in this Bid Specifications, shall not be construed as

either the maximum or minimum amount which Department shall be obligated to accept

as the result of this Bid Specifications or any Agreement entered into as a result of this

Bid Specifications.

57. DEFAULT OR REFUSAL TO ENTER CONTRACT

In the event of default of the successful bidder or his/her refusal to enter into a contract with

Department, Department reserves the right to accept any other qualified bidder.

58. LIST OF EXHIBITS

Exhibit A: Concession Premises

Exhibit B: Concession Payment Schedule

Exhibit C: N.J.A.C. 7:2-13, State Marinas

59. QUESTIONS AND INQUIRIES

The Department will accept questions and inquiries regarding this Bid Specifications

from all potential bidders. Questions may be directed only to the Department and must be

submitted by email to: OfficeofLeases@dep.nj.gov.

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The cut-off date for the submission of questions shall be December 15, 2017. It is

requested that bidders with long, complex, or multiple-part questions submit them as far

in advance as possible. Questions must be directly tied to the Bid Specifications.

Questions should follow the organization of the Bid Specifications and be asked in

consecutive order, from beginning to end. Each question should begin by referencing the

page number and the paragraph number of the Bid Specifications to which it relates.

Brief procedural inquiries may be accepted over the telephone by the Office of Leases

and Concessions. The Office of Leases and Concessions will not answer any inquiries

that require interpretation of the Bid Specifications. However, oral explanations or

instructions given over the phone shall not be binding upon the State. Bidders shall not

contact Leonardo State Marina, the Division of Parks and Forestry, or any other

branch of the Department directly, in person or by telephone, concerning this Bid

Specifications.

All responses to written questions will be posted at

http://www.njparksandforests.org/parks/business_ops/current_concession.htm by

December 22, 2017.

60. PROPOSAL DELIVERY AND IDENTIFICATION

In order to be considered, a proposal responding to this Bid Specifications must arrive at

the Office of Leases and Concessions no later than noon on Monday, January 8, 2018.

All bidders submitting proposals are advised to allow adequate delivery time to ensure

punctual delivery of proposals by the date and time set forth herein. Late proposals shall

be ineligible for consideration. The exterior of the Bid Proposal package envelope must

be labeled with the Name of the State Park/Forest and Concession Opportunity, the Bid

Proposal package Due Date, and the name of the individual or corporation submitting the

proposal. The proposal shall be submitted to the following address:

Department of Environmental Protection

Natural & Historic Resources

Office of Leases & Concessions

Attn: George A. Chidley, Manager

Mail Code 501-04C

P.O. Box 420

Trenton, New Jersey 08625-0420